Our latest update as to any rulings last week of the Planning Court together with any relevant appellate judgments, along with a commentary by Town Legal LLP and links. Where appropriate, we also include other relevant public law rulings from other courts.
This is a list of judgments of the Planning Court following a full hearing, or arising from an appeal from a Planning Court judgment, that were handed down in the preceding week. All links are to the relevant BAILII transcript. Summaries are for information only and are not to be relied upon as advice.
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1. Samuel Smith Old Brewery (Tadcaster) & Ors, R (on the application of) v North Yorkshire County Council [2020] UKSC 3 (5 February 2020)
Case Summary & Commentary: Click Here
Full Case: Click Here
Commentary:
Planning permission had been granted for the extension of a quarry in the Green Belt. The claimant contended that the planning officer’s report recommending approval of the planning application was defective in failing to make clear to members that the government’s policy for mineral extraction in the Green Belt, as expressed in paragraph 90 of the National Planning Policy Framework, allowed that visual impact was a potentially relevant factor when considering whether proposed development would have an impact on the “openness” of the Green Belt.
The planning permission was upheld by Hickinbottom J in the High Court, but quashed on appeal by the Court of Appeal, with Lindblom LJ giving the lead judgment.
In the Supreme Court, Lord Carnwath, with whom the other justices agreed, concurred with Lindblom LJ (and the claimant) in his conclusion that visual impact was a potentially relevant factor when considering the question of openness of the Green Belt. However, the fact that it was a potentially relevant factor did not imply that it was a matter which was required to be explicitly addressed by a decision-maker. On the facts of the particular case, Lord Carnwath held that the “relatively limited visual impact which the development would have fell far short of being so obviously material a factor that failure to address it expressly was an error of law”.
The appeal was therefore allowed and the planning permission upheld.
The Court of Appeal overturned a decision of the High Court quashing a Planning Inspector’s decision to uphold the refusal of a planning application for a housing development.
The planning application was refused on the basis that the proposed development of 80-100 homes would result in a loss of existing open space identified as play space without making provision for the replacement of such space or making adequate on-site play-space provision. As such, it was noted that the proposal was contrary to policy which provided, in broad terms, that planning permission would not be granted for development resulting in a loss of open space unless (in a scenario where there was not over-provision of open space in the particular community) it was replaced by acceptable alternative provision within the vicinity of the development or within the same community.
The Inspector concluded that the development was contrary to policy on the basis that it would result in the loss of informal open space in a community where there was already an overall deficit in open space provision. The Inspector’s decision was quashed in the High Court on the basis that the Inspector did not adequately explain how it could be that a development which was acceptable in principle under policies in favour of residential development on suitable sites within urban areas could be rendered unacceptable on account of a policy for the preservation of open spaces in circumstances where the Inspector accepted that the landowner could and would fence off the relevant land (and hence remove it from the stock of available open space) if the development was not permitted.
The appeal to the Court of Appeal was on the principal grounds (1) that it was not irrational for the Inspector to conclude that the proposal breached the relevant open space policy, not least because the parties agreed that the proposal would lead to a loss of open space and (2) that the judge adopted an erroneous approach to the fall-back position (i.e. the landowner fencing off the informal open space if the development was not permitted as the site was on land in private ownership).
On the first ground, the Court held that the Inspector was entitled to proceed on the basis of the parties’ common ground that the relevant land was open space notwithstanding the fact that the landowner had the power to exclude the public from it at will. It was neither an error of law nor irrational for her to proceed on this basis without pursuing further enquiries or for her to find that the open space policy was engaged.
On the second ground, the Court held that the open space policy formed part of the development plan and the fall-back position was a material consideration; as such, the Inspector had taken the correct approach (per s38(6) of the Planning and Compulsory Purchase Act 2004) of deciding first, whether there would be a loss of open space in breach of the policy and, second, if so, whether the fall-back position was to be given such weight as to justify the grant of planning permission notwithstanding the conflict with the development plan. It could not be said that it was irrational for the Inspector to conclude that the fall-back position did not outweigh breach of the development plan (this was a matter of planning judgment for the Inspector) and, as such, the judge had erred in his reasoning of the fall-back position. A further ground relating to procedural unfairness was not upheld.
Town Legal summary prepared by Ricardo Gama
2. Renew Land Developments Ltd v Welsh Ministers [2020] EWCA Civ 143 (13 February 2020)
Case Summary & Commentary: Click Here
Full Case: Click Here
Commentary:
The Court of Appeal overturned a decision of the High Court quashing a Planning Inspector’s decision to uphold the refusal of a planning application for a housing development.
The planning application was refused on the basis that the proposed development of 80-100 homes would result in a loss of existing open space identified as play space without making provision for the replacement of such space or making adequate on-site play-space provision. As such, it was noted that the proposal was contrary to policy which provided, in broad terms, that planning permission would not be granted for development resulting in a loss of open space unless (in a scenario where there was not over-provision of open space in the particular community) it was replaced by acceptable alternative provision within the vicinity of the development or within the same community.
The Inspector concluded that the development was contrary to policy on the basis that it would result in the loss of informal open space in a community where there was already an overall deficit in open space provision. The Inspector’s decision was quashed in the High Court on the basis that the Inspector did not adequately explain how it could be that a development which was acceptable in principle under policies in favour of residential development on suitable sites within urban areas could be rendered unacceptable on account of a policy for the preservation of open spaces in circumstances where the Inspector accepted that the landowner could and would fence off the relevant land (and hence remove it from the stock of available open space) if the development was not permitted.
The appeal to the Court of Appeal was on the principal grounds (1) that it was not irrational for the Inspector to conclude that the proposal breached the relevant open space policy, not least because the parties agreed that the proposal would lead to a loss of open space and (2) that the judge adopted an erroneous approach to the fall-back position (i.e. the landowner fencing off the informal open space if the development was not permitted as the site was on land in private ownership).
On the first ground, the Court held that the Inspector was entitled to proceed on the basis of the parties’ common ground that the relevant land was open space notwithstanding the fact that the landowner had the power to exclude the public from it at will. It was neither an error of law nor irrational for her to proceed on this basis without pursuing further enquiries or for her to find that the open space policy was engaged.
On the second ground, the Court held that the open space policy formed part of the development plan and the fall-back position was a material consideration; as such, the Inspector had taken the correct approach (per s38(6) of the Planning and Compulsory Purchase Act 2004) of deciding first, whether there would be a loss of open space in breach of the policy and, second, if so, whether the fall-back position was to be given such weight as to justify the grant of planning permission notwithstanding the conflict with the development plan. It could not be said that it was irrational for the Inspector to conclude that the fall-back position did not outweigh breach of the development plan (this was a matter of planning judgment for the Inspector) and, as such, the judge had erred in his reasoning of the fall-back position. A further ground relating to procedural unfairness was not upheld.
Town Legal summary prepared by Victoria McKeegan
3. Sainsbury’s Supermarkets Ltd v Secretary of State for Housing, Communities And Local Government and Anor [2020] EWHC 270 (Admin) (13 February 2020)
Case Summary & Commentary: Click Here
Full Case: Click Here
Commentary:
The High Court dismissed the claim by Sainsbury’s to quash the decision of the Secretary of State on a recovered appeal to dismiss the Claimant’s appeal for non-determination for its application for planning permission to demolish its Whitechapel store and re-develop the site against the Inspector’s recommendation.
The application was for planning permission to replace the existing store with an “explore learning” facility, retail and office space, 471 residential units, car parking spaces with 40 disabled parking bays and associated highway works. The application was reported to the Council’s Strategic Development Committee which resolved that the application would have been refused on grounds relating to affordable housing and viability, harm to the setting, unacceptable impact on daylight and sunlight to surrounding properties and the absence of a legal agreement.
The Claimant relied on two grounds of challenge. The first ground was that the Secretary of State should have provided Sainsbury’s with an opportunity to offer an alternative location for the proposed affordable housing through a revised section 106 agreement and therefore the decision (as recommended by the Inspector) to dismiss the appeal had been irrational and/or unintelligible and/or insufficient reasons had been given. The second ground was that the Secretary of State had failed to have regard to relevant considerations in concluding that there were no material considerations which indicated that the proposal should be determined otherwise than in accordance with the development plan.
The Claimant submitted, in support of Ground 1, that all matters save for the location of the affordable housing, were resolved in the Claimant’s favour, and therefore the decision was irrational. The Defendants did not agree with the Claimant’s reading of the First Defendant’s decision letter, and the dispute between the parties on this issue was at the heart of Ground 2.
The Court held that the Secretary of State took into account other matters which weighed against the grant of planning permission and that it was far from certain that addressing the distribution of affordable housing would have altered the planning balance in the Claimant’s favour. Further, the Secretary of State was entitled to dismiss the appeal on the basis that the proposal was not in accordance with the development plan overall and that the material considerations did not indicate that the development plan should not be followed. There was no identifiable public law error in the First Defendant’s decision-making, and therefore no grounds for a legal challenge
Town Legal summary prepared by Lida Nguyen
4. Wilbur Developments Ltd, R (On the Application Of) v Hart District Council [2020] EWHC 227 (Admin) (11 February 2020)
Case Summary & Commentary: Click Here
Full Case: Click Here
Commentary:
The High Court dismissed the Claimant’s challenge to Hart District Council’s decision in August 2019 to accept the examiner’s report and recommendations to put the modified Hook Neighbourhood plan (‘NP’) to a referendum. The Claimant wished to promote development at a site between the settlement of Newham and Hook. The ‘green gap’ and ‘identified views’ policies of the NP adversely affect the prospects of development at the site.
This case is important for clarifying that like appeal decisions, reports by examiners of neighbourhood plans should be read fairly and in good faith, and as a whole, and in a straightforward down-to-earth manner, without excessive legalism or criticism. It is also important in stating that Courts should recognise the expertise of neighbourhood planning examiners and work from the presumption that they will have correctly understood the relevant policy framework, applying Lord Carnwath’s comments about planning inspectors in Hopkins Homes,
The legal challenge was brought on 3 grounds. Ground 1 was that the Council’s conclusion that the draft ‘green gap’ policy met the “basic conditions” was unlawful as it failed to (i) have regard to para 31 of the NPPF which requires an adequate evidential basis for a policy (ii) take into account the conclusion of the Inspector examining the Council’s emerging local plan that a green gap policy between Hook and Newnham was not supported by adequate evidence; and (iii) provide legally sufficient reasoning for approving the green gap policy contrary to national policy and guidance. Ground 2 was that the Council’s conclusion that the draft NP policy providing that development must not adversely impact on certain views met the “basic conditions” was unlawful as : (i) it failed to have regard to paragraph 31 of the NPPF (ii) it acted irrationally in accepting the proposed modification, and failed to recognise that the proposed amended policy failed to meet the “basic conditions”(iii) the reasoning for approving the green gap policy contrary to national policy and guidance was legally deficient. Ground 3 was that the Council’s decision breached its obligations under the SEA Directive due to the failure of the NP’s SEA to adequately consider reasonable alternatives.
As to Grounds 1 and 2 which were considered together, the High Court held that: (a) The Report provided a sufficient basis upon which the Council could properly conclude that the NP met the “basic conditions” and they were entitled to rely on the Report’s reasoning; (b) Read fairly and as a whole, the Report’s reasoning was intelligible and adequate and even if they were weaknesses in the Report’s reasoning that the Claimant was not substantially prejudiced by it : (c) as to the green gap policy that the Council correctly directed themselves on the statutory scheme and were entitled to conclude, in their planning judgment, that the green gap policy was underpinned by adequate evidence; (d) as to the identified views policy, the Council were entitled, in the exercise of his planning judgment, to recommend a modified policy, supported by adequate evidence, which balanced the competing requirements of protecting important views across the landscape, and achieving sustainable development, having regard to the NPPF and the “basic conditions”. As to Ground (3), the High Court held that (a) the Council were entitled, in their planning judgment, to conclude that the SEA assessment complied with the SEA Directive by confining its “high level” reasonable alternatives assessments to 2 development options within or outside existing settlement boundaries, which was appropriate and proportionate as the NP did not allocate housing; and (b) that there was no obligation on the Council to give reasons for not including “reasonable alternatives” for the boundaries of the proposed gaps as part of the SEA as this was not considered to be a “principal important controversial issue” for which reasons were required.
Town Legal summary prepared by Paul Arnett
5. Ross & Anor (Acting On Behalf of Stop Stansted Expansion) v Secretary of State for Transport [2020] EWHC 226 (Admin) (07 February 2020)
Case Summary & Commentary: Click Here
Full Case: Click Here
Commentary: The High Court dismissed the challenge brought on behalf of Stop Stansted Expansion to the Secretary of State for Transport decision not to treat the application for planning permission for development at Stansted Airport as a Nationally Significant Infrastructure Project (NSIP). The application involved new taxiway links and aircraft stands and an increase in the planning cap of 35 million passengers per annum (mppa) to be increased to 43 mppa.
Under section 23 of the Planning Act 2008, airport-related development is to be treated as an NSIP in the case of any “alteration” to an airport the effect of which is “to increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services”. The Claimant argued that the airport’s proposals would lead to an increase of greater than 10 mppa because the Secretary of State should have considered the total passenger capacity which it was theoretically possible might be created by the works. The judge held that the Secretary of State was required to form a judgment by asking what increase in capacity could be realistically achieved, not what might technically or arithmetically be possible. In addition, the Secretary of State had not left material considerations out of account so the Secretary of State’s interpretation of the statutory test was sound and a reliable basis for taking the decision as to whether or not the proposal was an NSIP.
The judge did agree that the works did amount to an alteration to a runway within the meaning of section 23(6) because the statute uses the word “includes” so even through the works did not directly affect the runway the Secretary of State was entitled to conclude that works could constitute an alteration for the purposes of section 23(6).
The Secretary of State also has a discretionary power under section 35 of the Planning Act 2008 to treat a project as an NSIP if the Secretary of State considers that the project is of national significance either by itself or when considered with one or more other projects (or proposed projects) in the same field. The Claimant’s second ground was that the Secretary of State should have exercised his discretion to treat the proposal as an NSIP. The Claimant made several contentions as to why the decision was flawed. These included that the Secretary of State should have taken account of the fact that the proposal was part of a larger project to expand above the NSIP threshold in future but the judge considered the material before the Secretary of State and was not satisfied that it could have led to him properly concluding that the application he was considering was part of a wider or larger project.
The Claimant also criticised the Secretary of State’s conclusion that the carbon emissions caused by the proposed development could be properly regarded as within the scope of the Government’s policy on making best use of existing runways (MBU Policy). The claimant’s submissions was that the MBU carbon emissions modelling was flawed and had “underestimated the effects of growth in aircraft traffic at Stansted airport”. The judge accepted the Secretary of State’s submission that in “reality this aspect of the Defendant’s decision was essentially based on reliance on the MBU policy, and that the substance of the Claimants’ case is in fact a challenge to the legality of that policy in disguise. Certainly, the legality of that policy is now beyond argument. As such I accept that the Defendant was, lawfully, entitled to reach the conclusion which he did, based squarely on the MBU policy that “an increase in the planning cap at [Stansted]…could be adequately mitigated to meet the CCC’s 2050 planning assumption”. That was a conclusion which applied the provisions of the MBU policy which had considered that proposals of this scale would not imperil the achievement of climate change targets in the light of the modelling work which had informed the policy.”
For further discussion see Simonicity
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